There are restrictions and there are easements. Restrictions are subject to the statutes that cut short the period of their enforcement, while easements are not. And where do "negative easements" fit in?
Myers v. Salin, 13 Mass.App.Ct. 127, 431 N.E.2d. 233 (1992) is enlightening. Simplified, in Myers the common owner of registered lots sold some of them by deeds and subjected the retained land to an agreement "not to erect buildings south of the northerly side of the way thirty (30) feet wide extended . . . ." These instruments were characterized as the "Whittington deeds," and reference to them appeared in the certificate of title issued to Salin. When Salin began to erect a house in the proscribed area the situation was tossed into litigation.
The trial judge had ruled that the language created at most a negative easement and thus constituted "restrictions," subject to the provisions of G.L.c. 184, §23 and therefore unenforceable. The plaintiffs appealed, but the Appeals Court affirmed, holding that the covenants had expired by lapse of time.
But the court gave a few "clues" as to what might transform a restriction in the nature of a negative easement to a true easement:
We need not speculate about what the situation would have been if the covenants in the Whittington deeds had afforded to Mrs. Whittington the power (in order to enforce the negative easements) to go upon the grantors' retained premises to remove houses or other obstacles erected in violation of the covenants. Even such a provision might not have given the negative easement a sufficiently affirmative aspect to bring it within the Labounty case exemption of affirmative easements from G.L. c. 184, §§ 23 and 26-30. [Citations omitted.] The Whittington covenants had no such affirmative aspects. They merely purport to prevent building upon certain specified land retained by the grantors. Their purpose is not made explicit as, for example, protecting the sea view of the grantee. Nothing in them places emphasis upon any special importance of the covenants to the grantee or her land, although perhaps some such significance could be inferred from the circumstances. [Citations omitted.] The language of the covenants seems essentially undistinguishable, as to purpose and effect, from that often employed to restrain the use of real property, and building upon it, for the benefit of other land, resulting in a "restriction" enforceable on equitable principles. The Legislature, by enacting G.L. c. 184, §§ 23 & 26-30, and predecessors of those sections, has shown a general intention that such "restrictions," with certain carefully specified exceptions, be regulated in various ways, without apparent differentiation among the types of interest thereby produced, the names given to them, or the methods used in their creation. Accordingly, we hold, in the absence of special factors not here present, that the negative easements found in the Whittington deeds are "restrictions" within the meaning of § 23. See as to §§ 26-30, Thirty-sixth Report of the Judicial Council, Pub. Doc. No. 144, at 81 (1960). The Land Court judge thus correctly ruled that the covenants had expired by lapse of time.
These little "tidbits" left by the court in its opinion suggest that if enough affirmative rights are included in the restrictions that this might elevate the restrictions to easements, removing them from the effect of the statutes that would otherwise cut them short. The court states that a right in the restrictions to "remove houses or other obstacles erected in violation of the covenants" might not be enough to make this transformation, but that such a right coupled with an explicit statement that such right is for the purpose of "protecting the sea view" of the benefitted party just might do the trick. The problem is that if such language is not enough to make the transformation (the court doesn't answer the question) there would be the danger of falling into the bubbling caldron of statutes that would cause the rights to expire if no efforts to extend them were made. In other words, would such language constitute the "special factors" that the court mentions but so carefully fails to define? I am unaware of any case that guides us through this mine field and gives us clear vision of what would constitute these illusive "special factors." Maybe Bill does.
A "belt-and-suspenders" approach here could be misguided. Throwing on an extension at the 30-year mark "just in case" could show an intention that indeed the instrument was supposed to create a restriction. If the instrument created restrictions unlimited as to time the extension would be of no value anyhow. If the instrument stated that it was limited in time (100 years) it would fall into that "bubbling caldron," requiring periodic recorded extensions in order to prevent the instrument from dissolving in the stew. Truly a proverbial "rock and a hard place"situation.
Perhaps resigning oneself to the restriction point of view in the first instances, with appropriate recorded extensions would be the best approach. Unless you're ready to make new law!